Both Descendants and Ancestors: A Response to the Contributors

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

Alison L. LaCroix 

Let me begin by thanking Jack Balkin and Mark Graber for generously organizing this symposium and for convening such a marvelous group of contributors. I’m extremely grateful to the participants in the symposium – Jonathan Gienapp, Greg Ablavsky, Rachel Shelden, Anna Law, Anne Twitty, Simon Gilhooley, Jane Manners, Evelyn Atkinson, Aaron Hall, Christian Fritz, David Schwartz, Connor Ewing, and John Mikhail – for their thoughtful and probing engagement with The Interbellum Constitution. Having sought in the book to capture something of the symphonic nature of early-nineteenth-century constitutional debates, I’m deeply honored to have such an esteemed audience of scholars gather in this forum to review the orchestra’s performance. It is both nerve racking and exhilarating to hear – from the wings – the commentators’ reactions to my efforts to animate the parade of characters and the raft of plots that constituted the highly theatrical worlds of nineteenth-century law and politics. 

The central claim of The Interbellum Constitution is that a distinct constitutional world existed in the United States between the end of the War of 1812, in 1815, and the beginning of the Civil War, in 1861. The book argues that scholars of constitutional law and thought have largely overlooked the period, mistakenly treating it as the “flyover country” between the “real” destinations: the founding and Reconstruction.

Proof of concept for the book came early. One day when I was newly embarked on the project, I happened to cross paths in my school’s hallway with a senior colleague, who greeted me by asking, “What are you working on?”  “Constitutional thought of the early nineteenth century,” I responded promptly. “There wasn’t any!” my colleague trumpeted down the corridor. I was initially taken aback – was I launching a new project to study something that didn’t exist? But soon the meaning of exchange shifted in my mind. The bromide that the early nineteenth century was a period in which there was nothing recognizable as constitutional thought, only the more prosaic processes of supposedly “ordinary” law and politics, shifted from a specter haunting my late-night worries to become fuel and impetus. Showing that the early nineteenth century had its own specific constitutional modes and its own substantive convictions about the structure of the Union was important in historical terms. 

I also aimed for the project to be a corrective to a certain dominant, and often myopic, focus on the founding era that assumes that the meaning of the Constitution was fixed by 1791 – a view that endures, despite its thorough debunking in the work of Jonathan Gienapp and others. In addition to historical analysis, I hoped that the book would also respond to the “so what?” question that some law professors believe their wing of the academy invented, when in my experience it was most deftly, and terrifyingly, deployed by a historian, the late Bernard Bailyn. 

The book’s historical claim already felt urgent when I began working on it more than a decade ago. That urgency has only increased in the past several years, as the stakes of constitutional history – and its lesser imitator, “history and tradition” – have risen alongside the ascent of originalist modes of constitutional interpretation. If judges purport to care about history, then historians (not to mention the public) are justified in demanding that judges do history properly, respecting the craft and method of the discipline rather than treating it as a do-it-yourself exercise in scrolling through The Federalist or plucking phrases like “equity” or “removal” out of cases with little regard for context. Done right, history tends to open additional meanings. This fundamental aspect of the historical method often eludes lawyers or judges who seek to use history to prove a negative – to show that no one at their chosen “original” moment held a particular view of constitutional rights or structure, and that that absence is dispositive for constitutional law today.[1] 

Hence The Interbellum Constitution’s concern with showing that much of modern American constitutional law assumes a version of federalism that didn’t actually exist until after the Civil War. The book argues that the binary state-versus-federal-government model that is today taken to be the essence of American federalism does not correspond to the legal or political reality of the United States in the early nineteenth century. Where do the different branches of the federal government fit into the analysis, as well as the pressures from foreign governments? Lower down in the chain, what is one to make of the furious battles within states – between capital cities and port cities; between cities and towns and countryside; between sheriffs, harbormasters, aldermen, jailers, planter associations, and enslaved revolutionaries? The dichotomous state-versus-federal model, which Anna Law rightly links to Edward Corwin’s influential mid-twentieth-century concept of “dual federalism,” simply doesn’t apply to this earlier period. Therefore, the model can’t justifiably be employed by a judge who claims to apply originalist methods and used as the basis for a legal rule about how federal and state power interact today. That judge would need a different framework that accurately described the relationships between distinct levels of government at whatever specific moment the judge deems “original.” 

In addition to this descriptive historical claim, the book argues that the very nature of constitutional meaning-making itself was different in the early nineteenth century from how it looked either earlier or later. The Interbellum Constitution was different from both the founding-era and the postwar Constitutions not only in its substance but also in its theoretical underpinnings – in what counted as “the Constitution,” and in how it provided for constitutional change. (Here Jonathan Gienapp’s distinction between “constitutional thinking” and “constitutional consciousness” is tremendously helpful.) The key point here, one that I have emphasized in my more recent work (discussed below), is that constitutional change occurred through processes of debate, and not only through changes to constitutional text. 

In this response, I will focus on three particularly significant themes that recur among the symposium commentators’ wealth of generative comments. Two of these concern periodization: first, the book’s starting point of 1815; second, the “interbellum” framing. The third theme is a broader, methodological one: what the book’s claim that early-nineteenth-century American constitutional debates offered many more federalisms, plural, than either modern federalism or modern views of early federalism permit, can tell us about the changing modes through which constitutional change takes place. 

Periodization, Part I: Why Start With the War of 1812? 

In late August 1814, William Wirt was uncomfortably but proudly camped in the marshy woods along Virginia’s York River with a company of “flying,” or light, artillery that he had raised at the request of the governor to defend Richmond from a British attack. Ultimately, British troops took a different route, through Wirt’s birthplace of Bladensburg, Maryland, when they advanced on Washington City that month and laid their torches to the White House and other public buildings, burning some nearly to the ground. 

But for the ever-striving Wirt, forty-one years old and possessor of a thriving legal practice that would soon propel him into the post of U.S. attorney general, the opportunity both to take up arms and command troops – to become “Captain William Wirt,” as his wife Elizabeth, safe with their six children further inland, addressed her letters to him – was irresistible. And so Wirt, accompanied by an enslaved man named James, gloried in this chance to lead a “splendid” company to defend their “town and neighborhood” against the British invaders.[2] 

What was the appeal of sleeping in a tent, surrounded by his “grumbling” men, and besieged by insects while hearing alarming reports of the British fleet sailing into Chesapeake Bay?[3] One reason was ambition. Service as a military (or militia) officer was a crucial milestone in achieving gentlemanly status, especially in Virginia. Another reason was more public-spirited. Wirt, like so many of his contemporaries, had grown up hearing tales of the Revolutionary patriots. What better way to prove his republican bona fides – his dedication to the public good – than to sacrifice his welfare and his profession to lead one hundred men against His Majesty’s army, navy, and marines? 

But this was 1814, not 1776. And that difference is key to the book’s periodization of the interbellum period as beginning with the War of 1812. Wirt’s letters made clear that he did not view that war as simply a sequel to the Revolution. This conflict was a very different one. For starters, the troops themselves: “We beat our forefathers, as militia. I mean no disrespect to them whom I so much revere, but the fact is so,” Wirt wrote to his friend Dabney Carr. Even more important for Wirt was the current American state of mind, a sort of national mentalité, which Wirt contrasted favorably with the spirit of ’76: 

We have breathed, for thirty years, the proud spirit of independence, and in this spirit we begin the war. They, on the contrary, were warring against the habit of subjection, and were fighting against some of the strongest tendencies of their own hearts in fighting against their king. They were crushed, too, by conscious poverty, and the almost entire destitution of all the means of war. We, on the contrary, are rich, and armed cap a pie. No wonder, therefore, that we have more confidence, pride, and courage.[4] 

As Wirt’s observations demonstrate, Americans of the 1810s saw themselves as living in a moment that was politically and culturally distinct from the founding era. They were acutely conscious of having been born during the Revolution, but of having missed the Revolution. As Jonathan Gienapp suggests in his commentary, they understood themselves as inheritors of the Revolution. 

Yet we should not mistake inheritance – a sense of which was particularly important, as I argue, for South Carolinians William Johnson and Maria Henrietta Pinckney – for identity. The founding inheritance did not dictate how the founders’ children and grandchildren responded to the particular novel crises that confronted them. At the risk of sounding like a generation-obsessed, very online teenager of today, I’ll note that many members of Generation X grew up hearing constantly about the 1960s, the Vietnam War, and the Watergate scandal. The aftershocks of those political, legal, and cultural crises – which occurred during the early-adult years of the generation that preceded Gen X, the Baby Boomers – surely have shaped how the members of Gen X think about issues from warfare to countercultural expression to presidential power. But it would not be accurate to say that the fact of Gen X’s inheritance from the Boomers means that Gen X shares the identity or the views of the Boomers. On the contrary: sometimes inheritance leads to reaction, as the Boomers’ own fraught relationship with their Great Depression/World War II-forged predecessors shows. 

Similarly, interbellum Americans understood themselves as both inheritors of the founding and as a generation distinct from the founding generation. And, as Wirt’s observations illustrate, the War of 1812 played an outsized role in shaping their views of politics, law, culture, and, to borrow Philip Bobbitt’s phrase, “national ethos.” The book’s periodization follows that of the historical actors. 

Periodization, Part II: Why “Interbellum”? 

The book uses the term “interbellum” in part to avoid the teleology of “antebellum.” The endpoint of the period is – indisputably from the perspective of our own moment, and increasingly clearly to nineteenth-century Americans by the end of the book – the Civil War. But it is not a “coming of the Civil War” book. I have begun work on the next piece of what I now think of as a federalism trilogy that began with my first book, The Ideological Origins of American Federalism, which Connor Ewing connects with The Interbellum Constitution in his illuminating contribution. This volume-in-progress will focus on the Civil War and Reconstruction. The Interbellum Constitution, however, seeks to resist the temptation to read the first six decades of the nineteenth century as prelude. We now know that the crisis was impending, and of course William H. Seward warned in 1858 of an “irrepressible conflict.” But the simple fact remains that for us, now, to read the period between 1815 and 1861 primarily through the lens of 1863 and afterward is to do violence to the historical craft. 

As for origin point: the “interbellum” framing seeks to mitigate teleology by using a beginning point that contemporaries themselves fixed upon. The War of 1812 both marked and sparked the rise of the United States as a self-consciously fiscal-military state, as historians from John William Ward to Charles S. Sellers to Daniel Walker Howe have shown. Some studies of the war treat it as an entirely domestic conflict, missing the opportunity to tie it explicitly to the Napoleonic Wars, of which, as Evelyn Atkinson notes, it can productively be regarded as a component war. (As readers of the nautical novels of authors Patrick O’Brian and C.S. Forester know, the theater of action for those books’ British Isles protagonists encompassed Boston as well as Trafalgar.) The war’s important consequences for Native nations, and its overlap with the Creek War in the Southeast and the expansion of Tecumseh’s Confederacy in the Northwest, are also vital to understanding how different the United States of 1815 looked from that of a few decades earlier, as Greg Ablavsky has shown in his important work. One might also note that 1815 is the endpoint for Richard White’s pathbreaking 1991 book The Middle Ground. 

In short: war, money, defense, and national power were inextricably tied together in 1815, in a way they had not been in 1800, let alone in 1789. Consider the cohort of “War Hawks” elected to Congress in 1810 – young western and southern congressmen such as Henry Clay and John C. Calhoun who supported war against Britain, territorial expansion, muscular national economic policy, and internal improvements (all of which many War Hawks viewed as consistent with protections for slavery). 

Consider also Chief Justice John Marshall’s ringing defense of national power in his 1819 McCulloch v. Maryland decision upholding the constitutionality of the Second Bank of the United States. Marshall built what David S. Schwartz and John Mikhail, among others, have identified as his strong implied-powers interpretation of the Constitution by tying those powers to a robust fisc and military – and by reminding his audience that “exigencies” might yet again require the movement of funds and troops across continental-scale distances: 

Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the Nation may require that the treasure raised in the north should be transported to the south that raised in the east, conveyed to the west, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous and expensive?[5] 

Here we have Marshall – a member of the founding generation, to be sure – conjuring a vision of a vast Union operated by a general government wielding the specific powers necessary to run a nation-state. (The focus on raising revenue and deploying armies lends Marshall’s vision an ironic similarity to the rationalized system that Napoleon had sought to establish in Europe.) 

My argument in the book is that Marshall’s lofty constitutional theory – in particular, his interpretation of Congress’s powers under Article I – was also grounded in specific facts about the United States as of roughly 1815, as those facts were perceived by contemporaries. The catalyst was not the war per se, but the context in which the war unfolded. Absent this context – which had social, economic, and cultural components, as well as legal and political ones – it is too easy for us to flatten the differences between the post-1815 period and what came before. 

The interbellum period is significant for constitutional history because in the very moment that the “exigencies of the Nation” began to matter most, the web of competing claims from other levels of government and sources of authority seemed to expand. This tension is why the controversy surrounding the Fairfax lands – which became the 1816 Supreme Court case of Martin v. Hunter’s Lessee – frames the entirety of The Interbellum Constitution. And Martin, which presented the Supreme Court with a state high court making defiant but not constitutionally implausible (at the time) arguments, is a case that can only be understood in the context of the years 1814-15. 

The book’s Martin v. Hunter’s Lessee “spiral,” as I think of it, begins with the case itself in Chapter One and ends in Chapter Nine with a through-the-looking-glass version of the case in Wisconsin on the eve of the Civil War. In Justice Joseph Story’s Martin decision, the Court rejected the Virginia high court’s claim of ultimate decisional authority over questions of federal law. In so doing, the Court pronounced itself the constitutional “umpire” that the Virginia judges insisted did not exist. Martin thus reads as a full-throated statement of forceful federal judicial power. Indeed, that is how it is usually presented in constitutional law casebooks. 

If we dig a bit deeper, however, we find countervailing pressures at work, from both inside and outside the competing courts. These forces are necessary to understand what the decision actually meant in terms of contemporary constitutional politics. The Hartford Convention – the New England antiwar congress that was the first practical, on-the-ground test of the line between Union and disunion – was meeting in Connecticut while the Virginia court was hearing arguments in the case in the spring of 1814. (One of the lawyers who argued before the Virginia judges was, of course, the omnipresent Wirt.) The Virginia judges held back their gentlemanly insubordinate decision in the case until after the convention had disbanded and the war had ended – a fact that the Virginia judges couldn’t help noting when they finally released their opinions in December 1815. 

The law of the Martin case cannot be understood without attending to the politics of union and disunion that accompanied the War of 1812. Although the crisis featured echoes of the interposition doctrines articulated in the Virginia and Kentucky Resolutions, and thoughtfully interrogated by Christian Fritz, the threat of a handful of New England states negotiating a separate peace with a belligerent nation raised the stakes to a new level. 

The confluence of the Martin decision, the Virginia court’s defiance, and the threat of disunion were apparent to the newly demobbed Wirt, who left his peninsular encampment for Washington City in October 1814. The British had burned the city two months earlier; the Virginia court was waiting to release its opinion; and the war’s New England opponents were organizing to meet in Hartford. 

Wirt toured the ruins of the Capitol and the White House, pronouncing the latter’s “unroofed naked walls, cracked, defaced, and blackened with fire” a “mournful monument of American imbecility and improvidence, and of British atrocity.” Wirt then called on President Madison, whom he found “miserably shattered and wo-begone.” Madison, Wirt wrote to his wife, “looked heart-broken. His mind is full of the New England sedition.”[6] The experience of these interrelated phenomena – New England “sedition,” Virginian judicial supremacy, and fears of national “imbecility” – reverberated through the next five decades, even as they were rechanneled through other regions and commentators. 

To be sure, as Ablavsky and Schwartz aptly note in their contributions, the decades between 1815 and 1861 witnessed other wars that carried consequences for American politics, law, and society. Chief among these were the three Seminole Wars that raged intermittently in the southeast between 1817 and 1858, and the Mexican-American War of 1846-48. One might also add the Black Hawk War of 1832 and the Texas Revolution of 1835-36. Each of these was an important conflict that shaped the physical contours of the nation; contributed to the solidification of racial, cultural, and ethnic hierarchies; and set crucial precedents for warfare, international relations, and relations with Native nations. 

But the book’s argument is not about the impact of war itself on American federalism. Rather, it is about the impact of a particular war, the War of 1812, situated in its broader material and ideological context, on American federalism. The supposedly causal war, the Civil War, must wait offstage, unseen for now. The book takes up the story of American constitutionalism at a moment that contemporaries viewed as one of profound transformation – from the sartorial (from James Monroe’s knee breeches to Wirt’s pantaloons) to the partisan (Jacksonian Democracy’s invocations of “Old Hickory” at the Battle of New Orleans) to the technological (the steamboat, the telegraph, and eventually the railroad). I appreciate Anne Twitty’s characterization of these concrete, sometimes quotidian, details as constituting “a spatial history of constitutional debate.” These shifts, which unfolded in settings both local and continental, impelled interbellum Americans to exhibit the “adolescent mix of bravado and anxiety” that is so distinctive of the period (p. 9). 

Of Roofs and Walls; or, Why the Interbellum Constitution Matters Today 

In a seminal 1987 article titled “A Roof Without Walls: The Dilemma of American National Identity,” the historian John M. Murrin argued that the Constitution began as a “tentative answer” to the “broader cultural problem” of uniting a group of “extremely diverse states.” It was, in Murrin’s vivid phrasing, a “roof” for a political structure that, in the late eighteenth century, lacked the “walls” of shared identity. “Americans had erected their constitutional roof before they put up the national walls,” Murrin explained. “The Constitution was to the nation a more successful version of what the Halfway Covenant had once been to the Puritans, a way of buying time.” Founding-era Americans were ever mindful of the precarity of the unsupported roof, and the ensuing “fear that the roof could come crashing down at almost any time.”[7] 

Murrin’s architectural metaphor finds an echo in Abraham Lincoln’s “House Divided” Speech of 1858, which Sandy Levinson evocatively discusses in his recent comments on history and memory. The reference in the subtitle of The Interbellum Constitution to the Age of Federalisms, plural, is not intended to evoke only a “zone of contestation” or “legal pluralism” theory of federalism. As Ablavsky correctly notes, the problem with such framings is that “some legal arguments prevail, in the sense that they shape events, and some lose.” 

I agree wholeheartedly with Ablavsky here. My claim in the book is not that the Interbellum Constitution is best characterized only as an arena of conflict (to continue Ablavksy’s paraphrasing of Dirk Hartog’s foundational concept). Rather, the book seeks to fill in the substance of the conflict. There was something called “the Interbellum Constitution,” the content of which was a set of general principles about concurrent power, commerce, and migration. The Interbellum Constitution was the Constitution of “keeping it together,” with the “it” importantly – and, ultimately, tragically – underspecified. The founding era was the roof, as Murrin suggests. But how stable that roof was, and even what it was made of, were unclear in the interbellum era. 

Interbellum Americans saw themselves as building new walls with some old, inherited tools but many new ones that their forefathers and -mothers could not have envisioned. The most important of these new tools were discursive. The talking, debating, and arguing were the point. 

William Wirt’s oratory, Daniel Webster’s declamations, Maria Henrietta Pinckney’s pamphlets, William Johnson’s opinions (on circuit and in the Court), Elias Boudinot’s editorials, Sherman Booth’s broadsides, Frederick Douglass’s speeches – these were the sources of the Interbellum Constitution. As Rachel Shelden notes, one could fruitfully extend the sphere of the constitutional conversation to include party platform statements and state legislative materials. 

It is easy to miss the importance of all this talking and writing, and to see it as merely a medium for conflict. But the talking and writing were themselves crucial to the era’s vision of what the Constitution was, where its meaning came from, and how it could be changed. To see how distinctive this form of constitution-construction was, one need only consider the text-driven constitutionalism that dominates today, on both the political right and left.           

In my forthcoming California Law Review essay titled “Dispatches From Amendment Valley,” responding to Jill Lepore’s 2024 Jorde Lecture, I argue that the interbellum period was distinct because contemporaries believed that the Constitution could change, even as they declined formally to amend the constitutional text itself. In this “amendment valley” between the Twelfth Amendment (1804) and the Thirteenth Amendment (1865), constitutional change was seen as possible, and even desirable, through means other than the Article V amendment process. 

Here I differ with the views of historians such as Michael Vorenberg, who argues in his superb book Final Freedom that the antebellum period was characterized by a belief that the Constitution was sacred and fixed. To take one example from The Interbellum Constitution, consider the process by which “intercourse” became “commerce” – in the constitutional sense – during Attorney General William Wirt’s 1824 argument before the Court in the case of Gibbons v. Ogden. As Jane Manners notes, the jejune snickers from spectators in the cramped basement courtroom are nearly as important as Chief Justice Marshall’s ringing pronouncements in signaling to us that meaning was being created, and constitutional change was taking place.  And all this without an amendment. 

But this interbellum mode of constitutional change through discourse rather than amendment should not be mistaken for timidity on the part of contemporaries, or for a lack of confidence in their power to tinker with the text. On the contrary: consider the enormous numbers of constitutional amendments that were proposed in Congress between 1800 and 1860: thirty-eight amendments revising the Supreme Court’s jurisdiction; twenty concerning federally funded public works projects, known as “internal improvements”; and eighty-three regarding slavery, including the international and domestic importation of enslaved people, the status of fugitives, and apportionment of congressional representation. 

Why does this point matter? Because it shows that during the interbellum era – unlike our own era – fundamental constitutional change was widely understood as possible without amendments to the text itself. Interbellum Americans’ belief that they were living in a long founding moment did not necessarily entail a commitment to the authority of the founding itself. Here my view may differ slightly from the views of Aaron Hall and Simon Gilhooley. The Interbellum Constitution was a discursive Constitution, not a textual Constitution. In this crucial respect, it was fundamentally different from the post-Reconstruction Constitution, and from our current twenty-first-century Constitution. 

Coda: Generations, Again 

In his 1897 book Campaigning With Grant, former Union general Horace Porter began his reminiscences of his wartime service as a member of Ulysses S. Grant’s staff with an anecdote describing Grant’s first meeting with President Abraham Lincoln on March 8, 1864, when Grant had come east to take command of the Union Army and, it was hoped, end the war. Porter, who was the scion of a wealthy and storied Pennsylvania family, portrayed the White House meeting of the president and the general as a mythic encounter between two heroic westerners who had known “the severe school of adversity” before “enter[ing] the public service from the same State” in a “great crisis of their country’s history”: 

Each might have said to those who were inclined to sneer at his plain origin what a marshal of France, who had risen from the ranks to a dukedom, said to the hereditary nobles who attempted to snub him in Vienna: “I am an ancestor; you are only descendants.”[8] 

Interbellum Americans were intensely focused on their founding-era inheritances. But they were themselves bequeathers. They were acutely conscious that they were descendants of the Revolutionary generation. But they hoped that they might also be able to claim the mantle of ancestor – if the new-modeled walls that they were scrambling to build could only manage to hold. 

Alison LaCroix is Robert Newton Reid Professor of Law at the University of Chicago Law School. You can reach her by e-mail at lacroix@uchicago.edu.